DaPonte v. Winners Merchants International LP, 2011 HRTO 2122

Human Rights Tribunal of Ontario

B E T W E E N:

Fern DaPonte

Applicant

-and-

Winners Merchants International LP and Azhar Laher

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: November 23, 2011

Citation: 2011 HRTO 2122

Indexed as: DaPonte v. Winners Merchants International LP

1This Interim Decision deals with the applicant’s Request for Order During Proceedings (Form 10) asking to amend her Application to add mental disability to the ground upon which she alleges she was discriminated against, and to further add particulars to her description of the impact on her of the alleged discriminatory conduct. In addition, this Interim Decision deals with the applicant’s request for production and for a pre-hearing protocol.

REQUEST TO AMEND

2The applicant filed her Application on October 15, 2010 alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). In terms of the answer to “what happened” (section 8 of the Application), the applicant alleges, amongst other things, that she became depressed after her marriage broke down and that the organizational respondent was aware of this. However, in answer to the request to explain why she believed she was discriminated against on the basis of disability (section A15), the applicant mentions her “addiction issues” but does not mention her mental health issues.

3The respondents oppose the amendment on the basis that the facts were known to the applicant and her counsel at the time that her employment was terminated (January 2010), as well as at the time she filed her Application (October 2010). The respondents do not allege that they were unaware of the allegation – which would be difficult in light of the specific reference to it in the Application – and do not assert prejudice.

4With respect to the request to amend the description of the effect on the applicant of the alleged discrimination, the requested changes are as follows: after her employment was terminated the applicant alleges she (1) was “forced to live in a series of very poor circumstances;” and (2) was unable to provide a residence for her daughter (who is identified as having special needs), which resulted in further emotional turmoil.

5The respondents oppose these amendments on the basis that these new allegations are related to her “financial circumstances” and not a ground under the Code. I agree that these allegations do not form particulars of alleged discrimination, but do not understand this to be the purpose for which the applicant is requesting the amendment. That is, I understand that the applicant is requesting that these amendments deal with the impact of the alleged discrimination, and are not meant to expand the allegations of discrimination.

6In light of the minor nature of the amendments and the apparent absence of prejudice to the respondents, it would be appropriate to grant the applicant’s request to amend. Accordingly, this Application is amended to include the amended responses to section A15 (paragraphs 1 and 2 of section 3 of the Request for Order) and 9 (paragraphs 3 and 4 of section 3 of the Request for Order).

REQUEST FOR PRODUCTION/PRE-HEARING PROTOCOL

7The applicant seeks a copy of an anonymous letter and a copy of her employment file. The respondents oppose the request on the basis that the order for the anonymous letter is unnecessary and it is willing to provide a copy of the applicant’s employment file at her own expense.

8Rule 16 of the Tribunal’s current Rules of Procedure set out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

9Under the new Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent. The applicant has not any identified exceptional circumstances in this case.

10The applicant’s request for production at this stage is denied as premature.

11Likewise, the applicant’s request for a pre-hearing protocol is premature. As indicated above, the Rules of Procedure set out the time-tables for disclosure and production. There is no specific provision in the Rules for an exchange of hearing briefs or a pre-hearing conference. Having said that, the adjudicator assigned to this matter has broad powers to issue orders that he or she believes would ensure a fair, just and expeditious hearing and the parties can make requests they believe would facilitate that mandate once the matter is set down for hearing.

ORDER

12In sum, I have issued the following orders:

a. The Application is amended to include the amended responses to section A15 (paragraphs 1 and 2 of section 3 of the Request for Order) and 9 (paragraphs 3 and 4 of section 3 of the Request for Order); and

b. The applicant’s requests for production and a pre-hearing protocol are dismissed as premature.

13I am not seized of this matter.